Mintun v. State

• Decision Date: 10 July 2007
• Docket Number: No. 33038.,33038.
• Citation: 168 P.3d 40,144 Idaho 656
• Parties: Dennis Michael MINTUN, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

168 P.3d 40

144 Idaho 656

Dennis Michael MINTUN, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 33038.

Court of Appeals of Idaho.

July 10, 2007.

Review Denied September 14, 2007.

Nevin, Benjamin & McKay, LLP, Boise, for appellant. Robyn A. Fyffe argued.

Hon. Lawrence G. Wasden, Attorney General; Thomas Tharp, Deputy Attorney General, Boise, for respondent. Thomas Tharp argued.

LANSING, Judge.

Dennis Michael Mintun appeals from the district court's order denying his petition for post-conviction relief following an evidentiary hearing. Mintun contends that he proved either a denial of counsel or ineffective assistance of the counsel who was appointed to represent him in the appeal from his convictions for sexual abuse of a minor. We affirm in part and reverse in part.

I. FACTUAL & PROCEDURAL BACKGROUND

Mintun was charged with four counts of sexual abuse of a minor. Counts I through III alleged that on July 22, 2002, Mintun induced three boys, ages seven, nine, and ten, to touch and/or be touched and kissed by the other boys with the intent to gratify Mintun's sexual desire, in violation of Idaho Code § 18-1506(1)(b). Mintun took photographs of the boys touching and kissing each other. Two of the boys were brothers and the third was a cousin, and at least one was a nephew of Mintun. Count IV alleged that, on a different date, Mintun committed sexual abuse by inducing the ten-year-old boy to watch and photograph Mintun while Mintun masturbated, in violation of I.C. § 18-1506(1)(a).

Mintun testified at trial and acknowledged taking pictures of the three boys, but said that his affection for the boys was not sexual and that he saw nothing wrong with brothers and cousins kissing and hugging each other. Mintun was convicted on all counts. He appealed, and this Court affirmed the convictions. State v. Mintun, Docket No. 29725, 123 P.3d 211 (Ct.App. Sept.20, 2004) (unpublished).

Mintun then filed the present post-conviction action alleging numerous instances of ineffective assistance of his trial counsel and appellate counsel in the criminal case. Following an evidentiary hearing, the district court denied relief, and Mintun appeals. On appeal, Mintun does not pursue his claims of ineffective assistance by his trial attorney, but focuses instead on the allegedly deficient performance of the attorney who represented Mintun on the appeal from his judgment of conviction.

II. ANALYSIS

An accused has a constitutional right to assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, 805 (1963). The right to counsel necessarily includes the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763, 773, n. 14 (1970); Matthews v. State, 122 Idaho 801, 806, 839 P.2d 1215, 1220 (1992). The right to effective assistance of counsel extends to the defendant's first appeal as a matter of right. Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d 821, 829 (1985).

To prevail on a claim of ineffective assistance of counsel, a post-conviction petitioner must show that the attorney's performance was deficient and, in most cases, must also show that prejudice resulted from the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Berg v. State, 131 Idaho 517, 520, 960 P.2d 738, 741 (1998); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App.1995); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990). Deficient performance is established if the applicant shows that the attorney's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Berg, 131 Idaho at 520, 960 P.2d at 741; Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Russell, 118 Idaho at 67, 794 P.2d at 656. To establish prejudice, the applicant must show a reasonable probability that, but for the attorney's deficient performance the outcome of the criminal case would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 697; Berg, 131 Idaho at 520, 960 P.2d at 741; Aragon, 114 Idaho at 761, 760 P.2d at 1177; Russell, 118 Idaho at 67, 794 P.2d at 656.

A. Denial of Counsel and Presumption of Prejudice

Mintun first argues that the representation by his appointed appellate attorney was so inadequate and the attorney's conduct so deleterious to Mintun's interests that Mintun should be deemed to have been entirely deprived of counsel on appeal. Because the service of his appointed attorney, including the attorney's eventual withdrawal, was the equivalent of no representation at all, Mintun reasons, he is entitled to a presumption of prejudice that applies when there has been a deprivation of counsel, and he ought not be required to show actual prejudice from the attorney's deficient performance.

The facts underlying this claim are as follows. An attorney from the office of the State Appellate Public Defender was appointed to represent Mintun in his criminal appeal. According to the subsequent testimony of appellate counsel in this post-conviction action, Mintun wrote to the attorney inquiring whether there existed a viable challenge to the constitutionality of one or more of the statutory subsections under which he was convicted. Appellate counsel testified that he researched this issue and concluded that a valid constitutional challenge could not be made, but he did not communicate this determination to Mintun. Instead, the attorney prepared an appellant's brief, raising claims of error in evidentiary rulings at Mintun's trial and challenging the trial court's denial of Mintun's motion for a reduction of his sentences. The attorney sent a copy of the brief to Mintun. Mintun responded with a letter expressing his displeasure with the brief and outlining additional issues that he believed should have been raised. Again, appellate counsel did not respond to Mintun about his concerns.

After the State filed its respondent's brief, Mintun wrote to appellate counsel requesting transcripts of his trial and stating, that "I have elected to file a petition for a rehearing, and will operate pro se." At that point, Mintun was entitled to file an optional reply brief, and no decision had issued in the appeal, so a "petition for rehearing" would have been premature. Nevertheless, appellate counsel again did not respond to Mintun, either to clarify the status of the appeal or to otherwise discuss the case. Instead, based on Mintun's latest letter, appellate counsel filed with the Idaho Supreme Court a motion to allow the attorney's withdrawal and to permit Mintun to thereafter act pro se in the appeal. Mintun was not notified of the motion or given a copy. The motion was granted, and a copy of the order for the attorney's withdrawal was served on Mintun.

Thereafter, Mintun filed a reply brief, attempting to raise additional issues for consideration on appeal. This Court affirmed the judgment of conviction, rejecting the claims of error in the appellant's brief filed by counsel and specifically declining to address, for violation of appellate procedure, the additional issues impermissibly proffered by Mintun in his pro se reply brief.

Mintun now contends that this evidence demonstrates that he was deprived of counsel in his direct appeal. In summary, he complains that: (1) appellate counsel failed to communicate with him in any way during his representation; (2) appellate counsel improperly withdrew from the appeal without advising Mintun of the status of the appeal, the opportunity to request the appointment of substitute counsel, and/or how to file a motion for leave to file a supplemental appellant's brief so that the additional issues that Mintun sought to raise could be asserted; and (3) appellate counsel improperly withdrew from the case without assuring that Mintun was advised of the perils of self-representation.

Mintun's characterization of these circumstances as a denial of counsel is significant because, if accurate, it relieves him of the burden of proving prejudice from his attorney's inadequate performance. As noted above, a post-conviction petitioner claiming ineffective assistance of counsel must ordinarily show that the attorney's incompetence prejudiced the defendant, but if the defendant was denied counsel during a critical stage of the prosecution, the burden to show prejudice is inapplicable because prejudice is presumed. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Ditch v. Grace, 479 F.3d 249 (3rd Cir.2007).

Here, appellate counsel's noncommunication with his client about the issues to be pursued in the appeal and about the attorney's intent to withdraw can hardly be classified as optimal service. Nevertheless, because the attorney, before withdrawing, had already represented Mintun through all essential steps of the appellate process, it cannot be said that Mintun was deprived of counsel for his appeal and is therefore entitled to a presumption of prejudice from appellate counsel's failings. Whether a defendant is required to show actual prejudice or whether prejudice is presumed "turns on the magnitude of the deprivation of the right to effective assistance of counsel." Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S.Ct. 1029, 1037, 145 L.Ed.2d 985, 998 (2000). In Cronic, 466 U.S. at 658, 104 S.Ct. at 2046, 80 L.Ed.2d at 667 the Supreme Court held that there are narrow circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. See also Aeschliman v. State, 132 Idaho 397, 404, 973 P.2d 749, 756 (Ct. App.1999); Boman v. State, 129 Idaho 520, 526, 927 P.2d 910, 916 (Ct.App.1996). The Cronic rule encompasses three situations where courts should presume that the defendant was prejudiced by the absence or deficiency...